On
November 29, 2015, Defendant Samantha Hill, was in a physical
altercation with Jaynera Jones ("Ms. Jones").
Defendant was subsequently indicted for Assault Second Degree
and Offensive Touching. On February 29, 2016, the State
proffered a video that captured the altercation. The video in
question is filmed from a vehicle by the driver of the
vehicle at the scene of the altercation. The individual who
recorded the video remains unknown. The video is
approximately forty-one seconds long, and depicts two females
fighting, as well as bystanders on the street watching the
altercation. At one point during the video a male bystander
attempts to break up the fight. The case was scheduled for
trial on July 19, 2016, and Defense requested that the video
be excluded from evidence because the State did not proffer
the individual who recorded the video as a witness. A jury
was selected and sworn, however Defense asked this Court for
a continuance because Defense needed time to gather
information regarding a possible witness.

Parties'
Contentions

Defense
filed a Motion in Limine on August 31, 2016. Defense argues
that the video is not admissible at trial because the State
is unable to authenticate the recording. Specifically,
Defendant's Motion asserts that the State lacks knowledge
regarding who took the video, whether the video is of the
entire incident, where the video was taken, or when the video
was taken. The State filed a Motion in Limine to introduce
the video on September 1, 2016. The State argues that under
Rule 901 of the Delaware Rules of Evidence the State is able
to properly authenticate the challenged recording. The Court
asked the parties to comment on four cases from other
jurisdictions that the Court found relevant to the present
matter: Restrepo-Duque, Bichiok,
McNair, and Clayton. The State argues that
these four cases support their Motion to admit the video.
Defendant, however, contends that these four cases are
distinguishable from the case at bar. Defense cites to a 7th
Circuit opinion, Griffin v. Bell, to support the
argument that the State must call the person who made the
video to properly authenticate the video.

The
State plans to authenticate the video through two
witnesses' testimony, Ms. Jones and Officer Cavanaugh.
The State contends that Ms. Jones will testify that the video
accurately depicts the altercation by describing the clothes
she was wearing during the altercation, and the injuries she
sustained from the alleged assault. Officer Cavanaugh will
testify that Ms. Jones appeared to be victim of a recent
assault. He will also describe the clothes she was wearing
the day of the incident, and the location of the alleged
assault in relation to the background of the video. Defense
contends that there is an issue of genuine authenticity
because the individual who recorded the video is unknown at
this time, and the location and time of the video are also
unknown. Defense also suggests that the State's
authenticating witness, Ms. Jones, cannot be a credible
witness because she was convicted of making inflammatory
claims against a third party in this case, and the Court
"cannot be assured that Ms. Jones will not make
misidentifications" regarding the video.

Discussion

Rule
901 of the Delaware Rules of Evidence requires the
"authentication or identification as a condition
precedent to admissibility, " and this requirement is
"satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent
claims."[1] That is to say that the State is
"required to eliminate possibilities of
misidentification and adulteration, not absolutely, but as a
matter of reasonable probability."[2] Here, the State
wishes to authenticate the video recording through testimony
of a witness with knowledge, as described in D.R.E.
901(b)(1). Under D.R.E. 901(b)(1), authentication or
identification is proper where a party provides testimony
from a witness with knowledge "that a matter is what it
is claimed to be."[3] Thus, a "piece of evidence may be
authenticated by a person with sufficient knowledge of the
matter in question, without requiring absolute verification
that the record is accurate."[4] Further, "for a genuine
question of authenticity to exist, a party would need to
present facts or testimony sufficient to bring the issue into
contention."[5]

The
Court finds that the State is able to properly authenticate
the video recording under Rule 901 of the Delaware Rules of
Evidence. In State v. Booker, this Court held that a
"contemporaneously recorded video tape may be
authenticated as an accurate representation of what was
observable upon the television monitor without independent
verification that the transmission was accurately reflecting
the scene being transmitted."[6] In Booker, the
defendant objected to the admission of a video tape recording
of a shoplifting incident which allegedly involved the
defendant.[7] The defendant argued that the State could
not admit the video recording because "there [was] no
one to authenticate that the camera was, in fact, accurately
transmitting" the incident in question.[8] The Court noted
that the "issue of accurate transmission by the
television camera itself would be an issue going to the
weight" rather than admissibility.[9] Although in
Booker the security guard testified that he pressed
record on the camera and the scene "accurately reflected
the scene he observed, "[10] Ms. Jones is able to testify
that the video accurately depicts the scene of the assault as
she experienced it. There is no requirement under Delaware
law that the individual who recorded the video must testify
in order to authenticate the video recording. Rather, 901(b)
specifically provides that testimony of a witness with
knowledge is enough to conform to the requirements
established in D.R.E. 901.[11] Similarly, other jurisdictions
have admitted video recordings into evidence without the
testimony of an individual filming.[12] The State submitted
sufficient evidence to allow a reasonable jury to find that
the video is what it claims to be. Defendant's concern
regarding Ms. Jones' possible untruthful testimony is an
appropriate issue for cross examination. For the
aforementioned reasons stated above, the State's Motion
in Limine to admit the video recording is hereby
GRANTED.

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